Abortion as Liberty and Right

Long and wearying experience has taught pro-lifers a painful lesson in what the purposeful corruption of language can do to the quality of debate. Denying words the meanings they developed in their natural evolution, insisting that the connotations attached to them are different from those their users intend, employing obscure or grandiose phrases for simple ideas, turning definitions on their heads, and declaring whole realms of vocabulary out of bounds (for the sake, naturally, of tolerance) not only makes dialogue difficult, it inhibits the ability even to think about protected subjects, for lack of the words to do it. George Orwell dramatized the process of thought constriction through language control far more effectively than I could ever hope to do, and some of the more outrageous particulars from the abortion arena have been well documented in this journal and elsewhere. There is another form of language corruption, however, not as purposefully imposed and not as widely recognized but almost as serious in its effects, and it is the one I wish to discuss. It is an imprecision of meaning we unconsciously agree to in virtually all oral discussions and in most of what we read and write. Like doublespeak, it is especially devastating to outof-favor factions who attempt to bring to light points of view that are not frequently heard and that require precision of language in order that an audience accustomed only to ideas in fashion can hope to assimilate them. When a speaker uses the word “equality,” for example (or “democracy,” or “justice,” or “progress,” or “tolerance”) most of his audience will treat it as an unwarranted annoyance if one of his listeners asks that he be more specific and substitute a less value-laden or more narrowly defined word. But equality (as applied to people) has several distinct meanings and a number of nebulous ones. A discussion of human equality goes immediately awry when the various sides in a dispute use the same word for entirely different things.

Two words that enter into almost any discussion of politics, and the politics of abortion in particular, are “rights” and “liberties.” The meanings of these words are so often confused that they are sometimes treated as if they were the same thing. The phrase “civil rights,” for example, may be carelessly used when “civil liberties” is intended. In spite of its name, the American Civil Liberties Union is usually more concerned with promoting rights at the expense of liberty than the other way around; and phrases enshrined in the Constitution, like the “right . . . to assemble,” the “right . . . to petition,” and the “right . . . to keep and bear arms,” encourage the confusion. But “rights” and “liberties” do have different specific meanings that are important to any discussion of the powers and limits of government, and for the sake of clarity there is reason to insist on narrower meanings in that context.

The distinction I wish to make is between civil rights and civil liberties, by which I mean rights and liberties provided or guaranteed to us under law by government. In the context of political discussion to which this article will be limited, rights will mean civil rights, liberties will mean civil liberties. By liberty I mean the absence of legal restriction: the ability to do what one wishes without interference from laws or government. It is from this meaning that the word “libertarian” derives. Liberty (in this restricted sense) implies nothing about opportunity. I may be free to go to Harvard in the sense that no legal restriction prevents me. This does not mean I have the slightest glimmer of hope of actually doing so. A legal entitlement to a loan or scholarship might furnish me that opportunity; however, such a government-provided benefit would then be a (civil) right.

Conflict with another individual can result in inhibitions on my freedom, but my civil or legal liberty is not infringed by someone acting on his own initiative. The reason that individual acts of coercion should be treated differently from official ones is that governments maintain a monopoly on the legal use of coercion. When my neighbor does something to deprive me of life, health, comfort, liberty (here under its broader meaning), or property, he is almost certainly acting illegally. His deed is a crime or an action for which he can be sued, and the remedy available to me is civil litigation or the enforcement of existing laws—not new laws or a redesign of government.

When government deprives me of life, health, comfort, liberty, or property, it is (usually) acting legally. If I feel I am being treated unjustly, my only recourse is through reform of the political situation. Which rights should government provide? Which liberties should it guarantee? These are the things about which we argue, vote, stage protests, and, when we become dissatisfied enough, rise in revolt. This is the subject matter of politics.

Actions allowed us without legal penalty we call (civil) liberties. Protections and privileges granted to us by government are (civil) rights. Liberties impose restrictions on government: things it is not allowed to do. Rights impose obligations on government: things it is supposed to do. The concepts, if not exactly opposite, are at least in constant conflict, since rights are generally obtained at the cost of liberty.

Let’s say my neighbor parks his car in front of my driveway and boxes me in. If liberty were unrestricted, I might respond by ramming his car with mine, and he might then force his way into my house and beat me up. Since most of us do not care to live that way, we yield some of our freedoms in exchange for protections of government. Blocking driveways, ramming cars, and beating people up are made illegal and subject to punishment through actions of legislatures, police forces, and law courts. I cannot engage in these activities without risking a legal penalty.

In granting government the ability to pass and enforce laws, we gain rights at the cost of freedom. Benefits such as schools, roads, and protections against foreign invasion or violence from neighbors are provided to us at the cost of taxes we must pay and restrictions we must endure. The costs are usually not in proportion to the benefits we receive. Each of us may wind up as a net payer or a net receiver. And the restrictions we endure may be as severe as compulsory military service.

A right may be a protection—e.g., against acts of violence or theft or discrimination—or it may be a privilege: an entitlement to money (welfare payments) or goods (food stamps, medical care, hydroelectric power) or an opportunity to do something I would not otherwise be able to do. Tax-supported schools are an example. An opportunity is given to my children to attend school and a favor is granted to me as a parent not to pay any more taxes (perhaps less in fact) than do my childless friends. These rights are bought at the cost of economic deprivations imposed in various ways on various people without (much) connection to the benefit each of them receives. They are also bought at the cost of liberty, in this case of those who benefit. In establishing an educational system, the state makes attendance compulsory. I am forced to send my children to school whether I wish them to go or not and to a state school unless I can afford to do otherwise. I have obtained a right to schooling for my children, but I have lost my freedom to raise them as I wish.

The same activity may entail both a liberty and a right. If no legal penalties can be imposed on me for what I choose to say, I have freedom (liberty) of speech. This, of course, does not mean that other individuals may not respond to what I say in any non-violent or non-coercive way, such as by vilifying me, boycotting my business, or firing me if I happen to work for them. If the government provides a facility such as a free-speech corner in a public park, and perhaps stations a policeman there to ensure that I am not abused for what I say, it has provided me a right of (free) speech as well. If there is a law that says I cannot be fired for expressing my opinions, that is also a right of speech, but of quite a different kind. Liberty is complete only when there is no effective government: No rights exist then nor does the concept of legality have meaning. Government puts limits on liberty by law, regulation, and judicial precedent. The majority of laws impose restrictions of one sort or another. The more laws there are and the greater their scope, the less freedom exists and the more rights people have. The purpose of politics is to reach agreement on the balance. The problem, of course, is that everyone has a different idea of what the balance should be; but most of us at least agree that the maximization of either is undesirable. The maximization of rights is called tyranny and has been approximated at various times and places when a large array of protections and privileges is created for government officials and the factions they favor at the cost of the almost total subjugation of the rest of the population. The maximization of liberty is called anarchy and has been approximated in sparse and far-flung communities where no agents of government intrude.

A last detail on definitions: The phrases “freedom of . . .” or “freedom to . . .” generally connote liberty; the phrase “freedom from . . .” usually means a right. Of Roosevelt’s four freedoms, those of speech and religion are civil liberties, limitations imposed on government; but to the extent that freedom from want and freedom from fear can be said to be legally guaranteed by the government of the United States or any other, it is through actions of that government, not by restrictions placed against it. Freedom from want, if it exists, is a right, not a liberty.

As most of us have come to appreciate, “rights” and “liberties” both have highly positive connotations. Nobody wants to declare himself against either one, ever. The point I wish to make is that by attaching specific meanings to these words we are able see more clearly that a balance has to be struck between the two: The more one advocates liberty, the less he can defend rights. That is perhaps the crucial point in any discussion about the proper functions of government.

What are the proper functions of government? There are as many answers to that question as there are people who hold political opinions. The makers of the American Revolution were committed to an approach that can appropriately be labeled “self-determination”: a republican form of government in which the better features of democracy would be brought forth, by allowing individuals as much liberty as possible while assigning whatever government functions were necessary to the lower levels, those most easily and directly influenced by individual voters. A person would be allowed to live his life by the standards he chose as long as he did not actively harm his neighbor. Never fully put into practice, this philosophy stressed local government, limited authority, and individual autonomy at the expense of rights. Since that time, philosophies of government popular throughout the world have moved steadily away from liberty in the direction of rights. Political theorists of our day start from the premise that governments should and will prescribe values for the nations they control, through protections, privileges, and opportunities (i.e., rights) they create to encourage some types of behavior and inhibit others.

Whether the current fashions in politics suit your taste or mine, they are the ones we are likely to be faced with for the rest of our lives. Starting from this fact, I would like to see if you and I can agree on a minimum set of rights a government might provide and a maximum it might allow, and inquire if these limiting cases tell us anything about what the legal status of abortion should be. Let me first take a moment to discuss the status of abortion in the United States now, as a result of the way its legalization came about.

The moral transformation of the United States in the 20th century was marked with unusual clarity by a specific historical event: the Roe v. Wade decision of 1973. I do not propose to waste time or words reviewing this patently preposterous document or examining its extravagantly voguish social biases and its conception of judicial review. The impact it had on democracy and the Constitution, not to mention human lives, is evident to anyone who has the moral strength to consider the issue in depth. What I do want to comment on is the nature of the specific civil liberty that that decision brought into being, as compared, for example, with other liberties that are or were contained in the Bill of Rights.

Contrary to the general trend of the times (in which civil rights were routinely being created at the cost of liberties), in Roe v. Wade the Supreme Court found an abortion liberty in the Constitution, and not only found it there, but declared it to be absolute. Let me explain what I mean by that.

The First Amendment, you will remember, prohibited Congress from abridging various freedoms: of speech, press, assembly and petition. In apparent recognition of the fact that laws governing these areas might be useful or even necessary for reasons outside the range of federal competence, the comprehensive restrictions placed on Congress were not extended to state legislatures. The latter could abridge speech, press, assembly, and petition as their constitutions allowed and as their constituents endorsed through the votes they cast. As regards religion, not only were states not included within the range of the First Amendment’s restrictions, Congress was prohibited from making any law respecting the establishment of a religion:

It could neither establish one nor interfere with the establishment of one. In short, the First Amendment guaranteed certain freedoms to the people and to the states against over-assertions of federal power. This condition of federal inferiority would not be allowed to prevail indefinitely. Over time, by such Amendment-defying feats of imagination as “unprotected speech” and “the doctrine of incorporation,” the Supreme Court managed to capture for itself and the federal government control over what would and would not be allowed in the areas of religion, speech, press, assembly, and petition.

The Second Amendment was more forcefully put than the First, if not quite forcefully enough to prevent its being interpreted: “The right of the people to keep and bear arms shall not be infringed.” Neither Congress nor state legislatures would be allowed to infringe this freedom. It is the most clear-cut example in the Bill of Rights of what I call an “absolute” (unqualified) liberty. Due process of law, by way of comparison, is an obligation on government, hence a right. Prohibitions against quartering troops and unreasonable searches and seizures do place limits on government agents, but of a sort imposed by law on all other citizens. In other words, they are extensions of ordinary property and privacy rights rather than barriers to the legislation of restrictions in some area of human behavior.

Well, then: What kind of a liberty did Roe v. Wade and Doe v. Bolton create? An absolute one, of course, along the lines of the Second Amendment, without the annoying limitations to which the freedoms of religion, speech, press, assembly, and petition were supposed to be subject. According to the majority decisions in Roe and Doe, neither the federal nor any state government can enforce legislation that prevents an abortion from being performed up to the moment of birth as long as an abortionist can be found to say that it is in the interests of the physical or mental health of the mother. The liberty of a mother and her abortionist to dispose of a child before birth makes it impossible for any significant rights (a right to life, in particular) to be granted to the child.

In this regard, how does Roe v. Wade stack up against Dred Scott v. Sandford—a case that is often cited as its rough moral equivalent? In Dred Scott, a slave brought suit, claiming he should be free as a result of having lived with his master in Illinois and then in the northern part of the Louisiana territory before being returned to the slave state of Missouri. After years of litigation in lower courts, the Supreme Court decided in 1857 that Scott was to remain a slave, primarily because he was not a citizen and did not have a citizen’s right to sue. The details of the arguments are intricate, labored, and not half worth the effort it takes to wade through them. Chief Justice Taney, who wrote the majority opinion, maintained that descendants of people who were brought to this country as slaves were not intended to be citizens even after they had been emancipated. Roe v. Wade is among the philosophical progeny of Dred Scott at least in the sense that the liberty of one person to maintain control over another prevents significant rights being given to the latter.

The Taney court also showed itself ahead of its time in the type of decision it produced: long (over 100,000 words for the combined opinions), turgid, barely readable, and ranging over all sorts of social, political, and historical topics vaguely tied to the issue. One of the things Taney chose to put into his decision that might have had important political implications was that in the Missouri Compromise of 1820 Congress had exceeded its constitutional authority by prohibiting slavery in the northern parts of the Louisiana territory; Congress had no such power, he said. The point was largely academic by the time Dred Scott was written, however, since the allegedly unconstitutional legislation had already been undone by the Kansas-Nebraska Act.

Of all Supreme Court decisions ever rendered, Dred Scott is probably the one most universally denounced. Yet it went nowhere near as far on the issue of slavery as Roe v. Wade did on the issue of abortion; and, intellectually empty as its arguments may be, they are not quite as empty as those of Roe v. Wade. The Constitution does make explicit concessions to slavery from which one can at least speculate on what the legal implications of the practice should be; but there is nothing in the document about either abortion or the so-called right of privacy on which the abortion liberty was said to depend. More important, Dred Scott never intimated that the freedom to own slaves was guaranteed absolutely by the Constitution in the way that Roe v. Wade decided that the freedom to abort one’s children is. It made no claim that legislatures could not control, limit, or ban slavery within the borders of the states they represented. Illinois had done so and so had all the other northern states, and no question was raised about their ability to do what they had done.

To put it another way: If Roe v. Wade had gone only as far on the issue of abortion as Dred Scott had on the issue of slavery, the former’s effect might5 merely have been to deny to the federal government the ability to prohibit abortion in territories; state legislatures could have continued to outlaw abortions as they had seen fit. Abortion would have been allowed in states that chose to make it legal, and in those states unborn children would have been denied all rights—but the existing statutes of the 50 states would not have been affected.

As pro-lifers, which of us would not be overjoyed, relatively speaking, to find ourselves in the situation in which Dred Scott left the abolitionists—a situation in which the ordinary mechanisms of democracy, established for just such purposes, could still be relied upon?

As I stated earlier, liberty is complete until government intrudes upon it. All of us want to be free but none of us wishes to be at the mercy of his neighbors, so we are willing to tolerate at least some level of government. The minimum function on which we can agree—the first and most important right we seek from government—is protection against violence and theft. We are willing to pay something in money and freedom in order that others will be prevented from actively harming us. It is hard to imagine a political party that abjures this right. I assume you do not, and neither do the people who favor legal abortions.

The liberty to abort in the United States is absolute. But under a minimum form of government of the sort I just described, in which liberty is to be maximized and rights are to be kept to a minimum, should this be the case? In other words, if the rights provided us by government were limited to just a protection against being actively deprived of life, health, comfort, liberty, and property by others, would abortion be legal?

Except to flat-earthers and their intellectual counterparts in other fields of endeavor, the answer is obvious. We know now, as well as we can be said to know anything of a scientific nature, that when a human sperm and egg cell merge successfully, a new, distinct, living, human being comes into existence—and that to destroy those joined cells is to destroy that human life. If indeed we believe government should provide protection against the taking of life, then it should prohibit abortion. It’s that simple. It really is. And all the rest is sophistry.

Roe v. Wade created an abortion liberty: the freedom to perform abortions, or have them performed, without legal penalty. Since that time, many abortion rights have also come into existence or are being sought. By abortion rights I mean protections, privileges, and opportunities granted to abortion providers and advocates, and individuals seeking abortions, through government action. Payment for abortions through Medicaid is an obvious example. (The use of federal funds is currently restricted by the Hyde Amendment to cases of rape and incest and to protect the life of the mother, but approximately 21 states cover Medicaid abortions for more wide-ranging reasons.) Another is taxpayer support of abortions through organizations that promote or provide them, such as Planned Parenthood, or that encourage them with varying degrees of indirection, such as the United States Agency for International Development (USAID) and the United Nations Population Fund (UNFPA).

Some other abortion rights include the requirements that health-insurance companies include abortion in their coverage; that employers include abortion in the health insurance they provide their employees; that hospitals perform abortions; that medical schools include abortion training; and that public schools encourage their students (who attend under compulsion) to regard abortion as morally neutral or desirable.

In China, abortions are not only provided and promoted by government, they are in many cases made mandatory. Abortion rights there have been bought at an enormous cost in liberty—the freedom to have children. If we can agree that protection against active coercion is a minimum set of rights a government should ensure, can we also agree to some upper limits for those rights? Regardless of how we differ about the totality of functions we think appropriate to government, are there certain protections and privileges that government should not provide? Or, from another way of looking at the same question, which liberties should government definitely guarantee?

Many of us may agree in principle that freedoms of religion, speech, press, assembly, and petition should be guaranteed, but when we get down to specifics our opinions on these matters may differ more than we think; and we know that many people want the freedom to keep and bear arms to be infringed, perhaps denied. What of other freedoms not named in the Constitution: of travel, of place of residence, of emigration, of thought or opinion, of occupation, of schooling, of membership or political party, of disposing of one’s goods as one wishes, of behavior on one’s own property or in solitude, to have as many children as one wishes and to raise them by whatever standards one chooses—or a hundred others you could probably suggest? Which of these, if any, should be explicitly protected against encroachment?

This task is obviously a lot more complicated than coming up with a minimum set of rights, and thinking about it reveals how difficult reaching agreement would be. It also illustrates the fact that, because of those difficulties, many important freedoms are not guaranteed explicitly in the Constitution. Among them is one that, I think, most of us will agree should be protected to the degree that that is possible: freedom of conscience. Like any other freedom, freedom of conscience imposes a barrier to the creation of certain rights. Rights should not be created that force people (or encourage them under threat of penalty) to act against their consciences, nor should they have to pay for governments to do things that violate their consciences— except for those protections and benefits, democratically judged necessary to the common good, that only government can provide. Can a government function effectively if it has to respect the freedom of conscience of its citizens? Under the qualifications I stated I think it can, but this much I know: It can come a whole lot closer to respecting that freedom than it is accustomed to doing now.

The right to a trial as part of due process of law has been interpreted to allow the government to force individuals (under threat of penalty) to testify in court and to serve on juries. Coercions on these people were relaxed to take account of some individual differences of conscience. Those who believed it was morally wrong to take an oath, for example, were allowed not to do so. They were still made to testify, however, on the basis (I suppose) that justice cannot reasonably be attained without forced testimony. A more extreme example is war. Armed forces are enlisted and paid for by a nation to provide protection for its residents against real or imagined harm from foreign powers. This sometimes leads to situations in which people are forced under threat of imprisonment (even death, in some cases of desertion) to serve in the armed forces. Individual differences of belief are taken into account but often capriciously, depending on the degree of war fervor at the time. Some individuals will be allowed to opt out of combat, however, or perhaps out of war duty altogether by objecting to participation as a matter of conscience. Taxpayers are still forced to pay for a war whether they find it morally repugnant or not on the presumption (I suppose) that they get the “benefit” of it in any case. The effects of military actions cannot reasonably be doled out on an individual basis.

Both these cases are explicitly governmental in nature. Almost all of us consider a judicial and a military system necessary to public safety, while the benefits they produce are broadly distributed and difficult to assign individually. Even more distinctive is the degree to which both these systems rely on coercion: acts and threats of physical and economic punishment of a sort only governments are allowed to employ.

What does all this mean to the subject under discussion? Do abortion rights force individuals to violate their consciences? Obviously yes. To those who regard abortion as the willful destruction of an innocent human life, financing abortion is paying for murder. Out of respect for the freedom of conscience of these people, abortion rights should be created only if they have been democratically judged necessary to the common good and if they cannot be provided without the active involvement of government. I have already discussed the degree to which the nation’s democratic judgment concerning abortion was explicitly swept aside in 1973 (and continues to be). Building on this anti-democratic foundation, however, ordinary legislative processes have produced various abortion rights. What are we to think of them? Despite the apparent complexity of the issue, this point is not at all difficult to decide. Abortion is flat-out not governmental in nature in the way a judicial system is, or the protections offered by the armed forces are. It is, rather, like health care or housing or education or entertainment or a hundred other things each of us can decide individually whether or not to acquire. Like health care and housing and education and entertainment, it can be obtained through ordinary, voluntary methods of purchase; and if an individual cannot afford an abortion, she can be given access to it if there are enough people around who think she should be. In a realm of legal abortion, there is no reason that those who view it as a social good cannot bring about the results they desire without forcing participation from those who disagree with them. Any or all of its advocates can donate as much time or money as they wish to sympathetic clinics, hospitals, groups, and individuals.

During the period when slavery was legal, those who considered the practice despicable understandably objected to paying taxes to support it—for example, for the enforcement of fugitive-slave laws. In our time those who regard abortion as murder even more understandably object to sacrificing their money and their civil liberties to promote the practice through Medicaid, Planned Parenthood, USAID, UNFPA, and all the other types of abortion rights various legislatures take it into their heads to create.

If we make the effort to distinguish carefully between civil rights and civil liberties, most of us, including most advocates of legal abortion, will agree to certain rights that are to be included in the minimum that any just government will provide and certain liberties that are to be included in the minimum that any just government will guarantee. Based on the minimum set of rights (which includes legal protection for innocent human lives), abortion will be prohibited.

Based on the minimum set of liberties (which includes freedom of conscience to the degree compatible with essential government functions), abortion rights will not be created.

I leave it as an exercise for the reader to determine the logical implications of these statements.

The Worst Constitutional Decision of All Time

"As noted before, the Supreme Court did not invent abortion. There might be plenty of abortion, perhaps authorized or permitted by state laws, even without Roe and Casey. Moreover, the Court is, arguably, not directly responsible for the wrong moral choices of individuals that the Court's decisions permit. Finally, the Court is not responsible - cannot be responsible, consistent with its constitutional role - for correcting all injustices, even grave ones. But the Court is responsible for the injustices that it inflicts on society that are not consistent with, but in fact betray, its constitutional responsibilities. To the extent that the Court has invalidated essentially all legal restriction of abortion, it has authorized private violence on a scale, and of a kind, that unavoidably evokes the memories of American slavery and of the Nazi Holocaust. And by cloaking that authorization in the forms of the law - in the name of the Supreme Law of the Land - the Court has taught the American people that such private violence is a right and, by clear implication, that it is alright. Go ahead. The Constitution is on your side. This is among your most cherished constitutional freedoms. Nobody ought to oppose you in your action. We have said so.

The decision in Casey, reaffirming Roe and itself reaffirmed and extended in Carhart, in my view exposes the Supreme Court, as currently constituted, as a lawless, rogue institution capable of the most monstrous of injustices in the name of law, with a smugness and arrogance worthy of the worst totalitarian dictatorships of all time. The Court, as it stands today, has, with its abortion decisions, forfeited its legal and moral legitimacy as an institution. It has forfeited its claimed authority to speak for the Constitution. It has forfeited its entitlement to have its decisions respected, and followed, by the other branches of government, by the states, and by the People. The enthusiasm of liberal intelligentsia for the Court's abortion decisions, the sycophancy of the law professorate, of the legal profession, and of our elected officials, and the docility of the American people with respect to our lawless, authoritarian Court rivals the pliancy of the most cowardly, servile peoples toward ruinous, brutal, anti-democratic regimes throughout world history. We suffer people to commit despicable acts of private violence and we welcome - some of us revere - a regime that destroys popular government for the sake of perverted, Orwellian notions of "liberty." After a twentieth century that saw some of the worst barbarisms and atrocities ever committed by humankind, at a time when humankind supposedly had progressed to more enlightened states, we still have not learned. The lesson of the Holocaust - "Never Forget" - is lost. We fail to recognize the amazing capacity of human beings to commit unthinkable, barbaric evil, and of others to tolerate it. We remember and are aghast at the atrocities of others, committed in the past, or in distant lands today. But we do not even recognize the similar atrocities that we ourselves commit, and tolerate, today."^Michael^{Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 Notre Dame L. Rev. 995, 1003-1007 (2003).}

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.